Electronic advertising over networks, such as the Internet, takes various forms. One such form is, for example, advertising via electronic mail (e-mail). E-mail based advertising is now regulated by the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “CAN-SPAM Act”), 15 U.S.C. § 7701, et seq. The CAN-SPAM Act includes provisions that require the sender of an unsolicited commercial e-mail message to honor the request of a recipient to be unsubscribed from further e-mail transmissions of the sender, within ten days of the request. The CAN-SPAM Act only regulates the transmission of commercial electronic mail (E-mail). It does not regulate banners.
Producers and service providers may administer their e-mail advertising themselves, or outsource some or all of their e-mail advertising campaign to various agencies or intermediaries. Outsourcing is typically done for economic reasons, to save on costs and liabilities associated with e-mail advertising. Additionally, the intermediaries are more familiar with the Internet, and have access to multitudes of potential recipients.
However, as a result of using intermediaries, the producers and service providers may be unaware of the identity or e-mail address of the e-mail advertisements' recipients. If a recipient no longer wants to receive such promotions, the recipient so informs the intermediary, which is responsible for the e-mail advertisements' transmission, and is in the best position to timely halt further transmissions.
Compliance with the CAN-SPAM Act is relatively straightforward for a producer or service provider that advertises on its own through the transmission of e-mail. However, when the producer or service provider outsources their advertising to intermediaries, there may be confusion as to who is the “sender.” This is because the CAN-SPAM act defines the sender of the e-mail advertisement as the party that initiates the email transmission and that is advertising its own goods or services in the requisite e-mail transmission. 15 U.S.C. § 7702(16).
Those advertisers, who outsourced their advertising to intermediaries in an attempt to absolve themselves of liability under the CAN-SPAM Act, may still be concerned that they are the “sender.” This is because the intermediary is not advertising the intermediaries' services, but promoting the goods and services of the advertiser, whereby the advertiser, rather than the intermediary, may be treated as the sender of the e-mail under the CAN-SPAM Act. Moreover, this may be true even though the intermediary is actually sending the e-mail advertisement to recipients typically unknown to the party who outsourced the advertising to the intermediary.